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Author Panel on the Supreme Court Education. (2012) Author panel on the Supreme Court, with Clare Cushman, Anthony Franze, Todd Peppers, Jeffrey Toobin and Artemus Ward.

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Us 5, Washington 5, Roberts 5, Douglas 4, Elena Kagan 3, Jeffrey Toobin 3, Jenny Thomas 3, Rehnquist 3, David Souter 3, D.c. 3, Nixon 2, Brian Lamb 2, Parker 2, Souter 2, New Hampshire 2, Marshall 2, Byron White 2, Uncontroversial 2, United States 2, John Marshall 2,
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  CSPAN    Book TV    Author Panel on the Supreme Court  Education.  (2012)  
   Author panel on the Supreme Court, with Clare Cushman, Anthony...  

    December 25, 2012
    10:45 - 12:00am EST  

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john hancock who actually took action. >> thank you. >> are there any other questions or do we have time for just one more? >> okay. quickly, please approached the microphone. [laughter] long way to the microphone. but he's coming. >> this is a dedicated question. [laughter] >> i am a college professor myself. the way things are now, these people have said what's going on
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here in america and we did a lot of research on it. what's your opinion? >> let's look at what has been created and so on. >> i think the way the country has turned it basically is wonderful, and these guys took a great chance and they risked their lives and a lot of people died so we did have a government where the states took place. the irony that i bring up and i read about the tea party is that in fact there is not a lot in common between the contemporary tea parties and the fiscal policy ideas about the fiscal policy. david mccullough on 60 minutes the last few weeks was talking about the fact that we have become historical the illiterate in his opinion and they asked
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him why that was. i wonder what you think about that. can i ask that question? >> do you agree? >> it is the fault of my wonderful profession. i don't think we teach history as it should be taught. it was a wonderful story about the past that helped to answer questions about our president, and i think the better that we teach history and the further that we get away from the fact driven textbooks and the wonderful stories we tell, the more our children and ourselves will understand how extraordinarily exciting our history is and how important it is to know. [applause]
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>> next from the georgetown university law center in washington, d.c., a discussion on the supreme court. it's about one hour and ten minutes. >> hello, everyone. i want to welcome you to today's program, which features an all-star lineup of authors who will be discussing their most recent books on the supreme court. i am a professor here at georgetown and executive director of the supreme court
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institute. it's a real privilege for the supreme court institute to host this event and i would like to thank our deputy director for putting it all together. before i turn the program over to our moderator i would like to remind everyone that after the program we have a reception following in which he will get a chance to have all of your newly purchased books signed by the authors and have a word or two with the authors hopefully coming in as you can see, we have food and beverage, so please stick around after the program. with that, i would like to introduce our moderator for today's program. tony really needs no introduction at all sali will keep it short and tell you just that tony has long been one of the nation's most influential journalists covering the supreme
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court. he is currently is a supreme court correspondent for the national law journal and his work on the supreme court insider is a must read for anyone that wants to figure out what is going on in the court today. so with that, the program is yours. >> thanks very much. a very kind introduction and thanks also for your work on this panel. it's great for me to be here as a moderator of this event. i've written enthusiastically about every author here and buy a big fan of anybody that sheds more light on the supreme court and we have all done great job of that. and thank you to the audience for attending and also to c-span and book tv for being here as well. this should be tough on our. we are here to serve and explores the category that seems to be growing.
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books both nonfiction and fiction about the supreme court of the united states. the supreme court doesn't seem to come off much during the presidential debates, but it certainly does generate a lot of books. i can tell that from the pile of books on my desk that comes in unfortunately. the authors we have illustrate the work about the supreme court. we have specific cushman that has written a wonderful anecdotal history on the personalities on the court. yet jeffrey toobin whose latest book on the court is as fresh as today's headlines or should i say breaking news alerts. there's fiction, too. the book is a fast-paced thriller in which the justices are shot by the second page. it touches a lot -- it teaches a lot about how the supreme court
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works and there is the art board that have written several books about the justices and their clerks and it's a fascinating relationship. you might wonder what do these books have been common besides the fact they are all about the supreme court. the answer is i believe all of these books are built on the founding assumption that the supreme court is about more than just its opinions. to understand fully, you need to know about the justices background and personalities and personal dynamics and their clerks. this is a perspective that hasn't always been possible with the supreme court which is a intensely private institution. you remember we were writing about the courts penchant for privacy in 1993 and toni house told me very firmly if the court is perfect comfortable as an
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institution as the justices and they don't think whether they play tennis for the championship fox-trot first has anything to do with whether they are good justices. but things are changing. contrast that with the chief justice roberts wrote to clare's the class year. the book he says sets aside the private side of life on the court capturing the relations among friends, family and one another and the book will delight all of those that want to look beyond the portraits and gain the individuals that have contributed so much to the work of the court and the evidence of the justice. so, the supreme court historiography i think we all should embrace. in my own career essentially - sized these aspects of the court as much as the opinions and it certainly makes for interesting reading as all of these authors
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illustrate. succumb to start off, i think i will ask a question about this whether the background is important and i hope the panels use this as an opportunity to talk about their books and tell some stories and have some further discussion and eventually i will open it up to the audience and there is a microphone that we will ask you to use in the center of the ogle here. so first alaska clare cushman to talk about the book. she's the publication structure of the historical society. so maybe you can tell us about your book and some examples in history about how personalities play an important role and how business works. >> thanks, tony. i wrote a one volume history of the court that has absolutely no case law and at which is shocking to some people.
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my intent was to show a history of the institution and its practices and traditions and how they have evolved over time and what i really wanted to show is what it's like to be a supreme court justice or what it has been like to serve that role and how the justices go about doing their jobs. something that is very relatable to the general audience than a sophisticated legal audience. so, the thing that interested me in the supreme court history are things like how the newly appointed a justice run stokes and gets them broken in and how the justices collaborate and work together, sort of the organizational psychology of the court. i am interested in the workload and manage the work and then also interested in showing how
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the justices know when it's time to go and when it's time to retire. so i look at those themes and also the evolution of the practices like the oral arguments, which probably is one of the traditions of the court that has changed the most of its 200 years. under the martial court. in fact they like to raise their speeches for the illusion to shakespeare and the bible and roman law and they are equally and addressing the ratings in the courtroom audience who were all dressed up to come here the speeches as for the justices. but the justices haven't been given the written briefs in the cases, and they often haven't thought about the case much before the argument started. so they mostly sat in silence
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was sen. obviously the argument has changed enormously over time, and the introduction of the briefs in the 1840's changed things as did the waddling down of time and as we all know these advocates only have 30 minutes to get their point across and the justices that are briefed on the case. so, that is an example of looking at the supreme court practice change enormously but i also wanted to show that things haven't changed. there are a lot of traditions. as you know the court is very tradition bound but they stay the same. for the disabled on how the justices feel about their salaries. as you know both chief justice roberts and rehnquist have been
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active at trying to get congress to raise the salaries including supreme court justices in the private sector but even compared to the senior law professor there is a great gap. i went back and looked at the same issue in 1810 the of the story on a martial court that talked about his salary and complained to the congress and asked for a raise complaining that daniel webster one of the advocates of making 30 times as much and then looked at the scene issue in 1860 and chief justice said the same thing. the retired general's and the civil war that are making more than we are. so, the trace the evolution of a lot of these customs and practices that the way i went about this institutional history
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is the anecdotes because i really wanted to give color and life because as we write about the institutional practices people will fall asleep, so why use letters, diaries, old interviews come current interviews to try to bring it to life. do you want me to talk about some of my favorite sources? so, a lot of the sources are very well known to the scholars, but some of them have been neglected or haven't really seen the light of day in the last 50 years so wine church but a lot of old things, but one of the sources that i absolutely adore is the dalia area of elizabeth black who is hugo black's second wife and secretary and they were married in 1956 and she kept a
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diary until 71. she had a great sense of humor and sat down what was going on and i loved the source because it shows you what happens in the day of the justice after he leaves the court and goes home and is struggling with cases and using his life as a sounding board. do you think and i can read it roughly? >> one of the things about the eyewitness accounts is that you can't really describe them. you can't carry freeze them. you have to go right to this course. >> okay.
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so, on an opinion that he thinks to be very important he is a weekend in the middle of the night thinking about it and soon he pulls the chain to pull on a life and she says to me are you away? why is that time i am of course will be -- i am a week. this is what it is all about. he recounts in detail the interest of being perpetrated because of his brothers failure to see it his way. we have to write on very narrow grounds if he wants to get the court, he says, meaning those he has with him and those against. sometimes this on - him and sometimes not. if he doesn't feel he can go to sleep, she says it's 3:00 in the morning. i have to be fresh for the conference tomorrow. what do you think i ought to do? then he suggests why don't you take a little bourbon to make you sleepy and he wrote it is
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terribly inhibited about taking liquor and wants me to be the one to suggest it and so he poured a splash of bourbon on ice, fills the glass with water and soon is sound asleep. the next morning he awakens as open-minded as he can be and he approaches the day with his humor. so, just one of the thousands of anecdotes of my book that i hope of the court more of a human face and help people to really understand what it is like to be the supreme court justice and how they go about doing their. >> thank you. next is anthony is a primary arnold and porter and many of these days they're writing not about the supreme court put to the supreme court in the form of briefs. he is here to talk about the book, not the briefs. it's called the last justice.
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you meticulously researched the court for the book, so tell us about your taken the importance of personalities and understanding the court and the solicitor general as well. >> well, with regards to the justices, and as tony mentioned the first couple of pages in my book, the entire supreme court is fascinating said there haven't been many surviving justices to go too much, but personalities mean a lot from the fiction writer's perspective it is about the characters. you can have the great best part around but if the reader doesn't care about the characters and then it's not going to matter, so i read everything i could about the past justices and really the judicial community and tried to bring some of that to life. this is a thriller so you've got
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to take liberties. i've never met anybody that engaged in all of the horrible things people do in the books, but i tried to make the characters believable in the context in which their daily lives and the roles they play. i did get a reality check of the real those of the characters. i got an e-mail from a federal court of appeals judge who had some comments about my characterization of judges and i enjoyed it, so i asked the judge if he would mind if i shared it and he said i have a life tenure, so why not, so here it is. [laughter] i read your novel the last justice from cover to cover in just a few days and i really enjoyed it. so far i like the judge and i do
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have a gripe, however. the justices and judges seem to be more highly sexualized than in real life. [laughter] in my experience. [laughter] i suppose, however, your characters give jurors everywhere something to aspire to. [laughter] so maybe i didn't get everything perfect about the characters, but to bring it back to the personalities and the dynamics, for me it isn't about the big decisions i'm trying to come up with these people are not real, it's fiction but i do hone in on some of the personal things you read about the justices. for me the fact that one of the justices in terms of putting a yogurt machine in the cafeteria, the fact that chief justice
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roberts -- it's one of the things you don't really care for about your role and he said i hate all of the administrative work that doesn't deal with my decisions, and it's those things i grasp onto that make the justices human and we can relate to them more and their readers can relate to them for so that is the kind of thing i try to character capture and characterizing. >> [inaudible] central role to the solicitor general that is now been doing it cannot normally viewed as a high position but it works very well. next i want to ask jeffrey toobin to speak. he's an analyst for cnn and staff writer for the new yorker and a wonderful writer and his new book is the second on the supreme court. digest finished reading at and is shifting back and forth
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between the course people and its doctrines and "the new york times" reviewed your book which is appearing tomorrow. talk about that emphasis on personality as well as opinion. >> let me talk about the supreme court by the numbers for starters. there are six men and three women, first time in history there are three women on the court. there are six catholics and freed jews and there are no protestants on the supreme court. there are representatives of the four new york city boroughs on the supreme court from the bronx ginsburg and elena kagan is from manhattan. they are on the supreme court so anyway those are some facts about the supreme court that i hope are interesting. care is a fact of the supreme court that it's important. there are five republicans and four democrats.
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the supreme court to me any way is most important as a political institution that render is largely political judgments about the issues that come before it. i don't say that as criticism. i often in forums like this just why do they have to do so much politics? can't they just decided the law clerks when they decide questions like does the constitution protect a woman's right to an abortion? does the university consider race in admissions? those are as much political issues as they are legal issues and if i am most concerned about the court as an ideological and political institutions and that is reflected through the personalities of the justices, but mostly it's reflected through their ideology, and i am obviously very interested in the
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justice of people but to be what is the most interesting about them is their political views. for example, the last three justices to lead the court, three more different human beings you will never encounter. sandra day o'connor, this tall outgoing charismatic former politician from arizona, the shy reclusive bachelor from new hampshire, john paul stevens, widely antitrust lawyer from chicago, totally different personalities but what do they have in common? they are all moderate republicans who left the supreme court completely alienated from the modern republican party. and that it will what is important about them to me. just as moderate republicans had disappeared from the united states senate and certainly the united states house of representatives the head disappeared from the united states supreme court, and that, to me is the most significant thing about the supreme court, which is the decisions they
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reach, why they reach them and why those decisions matter to people in the real world. >> all right. finally we have todd pepper together create a subcategory of supreme court books that spotlight the influence of importance in the justice law clerks, which is the subject i have been fascinated with for many years as well. the new book in chambers is a fascinating collection of essays from narrative and clerks about their justices. so, todd, can you tell us some of the stories about the court as well as about the clerk >> five years ago i came up to washington, d.c. to interview a guy named william coleman jr.. he is now i think 93 and works 12 hour days was of interest to
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me as a subject is he was the first black will clark on the supreme court. i cannot and i got a good rate to stay at the mayflower hotel in washington, d.c.. i went over the next morning to interview bill and we were making chit chat and he asked me what i would say the night before and i would say the mayflower and how nice it was and he would save the hotel and as a matter of fact the tone of voice said you know in 1948 when i clerked, they wouldn't serve me at the mayflower. and he started telling me the story about lunch time when he and his clerk who would go on to hold more cabinet positions in the modern american history for lunch outing and a couple minutes before they were going to leave, she came back in the chambers and rushed into the
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chambers and there was a hushed conversation and frankfurter came out and was highly agitated and close to tears and at that point eliot announced we need to get done some work whittled we go down to the union station which happened to coin the bill on one of the few places in town that would serve people of color in 1948. for me, that crystallizes why i enjoyed studying bill wall clerks. it's personalities. it's personalities not only the justices but the clerks, clerks that have gone on to fame and fortune of their own. warren christopher, secretary of state for bill douglas we have had five clerks that have returned to the supreme court. i enjoy the story is as they should in the relationships on the enjoy them because they shed light on the relationship between the latitudes and personalities and the judicial behavior and also because the supreme court clerkship is about
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number one when it comes to internships in this country and in 1998, when i was in graduate school of thinking about doing my dissertation on clerks i had a series of articles in the usa today written by tony about the law clerks the supreme court justices will clerks hiring practices and one of the justices were not hiring very many women and were not hiring people of color. and those issues also important because they raise questions about social justice in terms of what tv to whether the supreme court is swallowing its own dictator in terms of all people in the workplace. so i've been studying the law clerks since probably gives us a year in 1988, 2000, and really what ultimately captivates me and comes back are the stories, the stories of the marshall holland ii add a local hospital dying of spinal cancer and they
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yell and large cigarettes. she died basically penniless but for the last 15 years as the clerks selectively took care of his wife the story is whether you are in the class you can never go wrong talking about the homes and it's the same thing when it comes to law clerks. there were the surrogate children, they were the individuals that had to listen to the stories about the civil war and whether they wanted to or not, and in a home they would walk around the district of columbia and they would be talking about this repetitions, homes for example one of the clerks was tommy corcoran and when he couldn't keep up the end of an argument about god in the universe he assigned the task of to submit to come back and look at the argument. so, it is those types of stories which i think really captivate
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me, and i think they show an aspect of the supreme court clerk ships which are vanished or is vanishing. so in the 1920's and 30's you have one or two of bill law clerks and the justices in their own opinion ratings but the pressures i don't think for their like they are today. today the justices have four or maybe five law clerks. justices are consumed with questions about secrecy to the to secrecy and confidentiality and the nine law firms i don't think the justices and the clerks have time to walker of the district of columbia and look at the tool looks like they do with a law clerks or spend -- st at midnight with hugo are giving about thomas jefferson and his views on the role of the church as a democratic republic. on one of those stories lost one thing that's fund that both large and i enjoy is trying to find the stories and preserve
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them. schenectady only decided 64 cases last year. they should have time to walk around and look at every flower in washington. >> the should come they should. when you have the law clerks and all these beautiful briefs that give you the law you would think they would have time to go out and pick to lips. estimate it fills the time. >> that's right, that's right. and i'm sorry that the other thing that is fascinating is the justices attitude towards the clerk to read a couple years ago the university gave a talk and at one point they told the american university students they couldn't afford to haulier them cannot afford in terms of salary but they couldn't take a chance on them because the work of the court was so important that god forbid he would get a clerk that might not be up to snuff. on the letterhead of the justices want to maintain this fiction to do all their own work. you can't have it both ways. you can't argue doing their own work the assistance are so
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important we can't possibly look beyond harvard, yale and stanford. >> i think that is a really good point. i think one of the things to say about this is 100 years ago they did do their homework. how did they possibly get anything done? i want to agree with what jeff toobin had to say about the politics of it and expand a little bit on what he had to say not just the politics among the justices which are crucial and endlessly fascinating the politics among the clerks and between the clerks from different chambers and the justices that's what interests me to ring it is a small working groups of individuals that are dealing with the biggest political issues of the day, and so when i do research on the clerk's what i find is that the clerks are i think influential in this process and i know it's controversial to say so, but if
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you look at the process of a holistic way, but you find is that clerks are -- in fact they are required to give their opinions on the matters that are being decided by the court and potentially decided by the court. the lobby their justices and they must say we should take this case or we should not take this case and not just in terms of the law but whether it is a good time to take the case publicly because of the presidential election going on. these sort of call the local issues are what fascinates me and one of the things i've written about the clerk network which is the eat lunch together and played basketball together and commute in to work together and are constantly talking about the cases and where the justices stand on the cases and do you think they could move destruction if i said this or got my justice to say that. so the clerks are the kind of
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go-between. the intermediary. in the process, the political process of the colish information, and they don't talk to each other that much. they aren't that much to each other. it's the clerk of the conversation. they have the soviets and clerks in the context of what happened. we saw this summer the leaks that occurred after the court term ended about all the back-and-forth concerning the affordable c.a.r.e. decisions, the landmark case is on the so-called obamacare. there's been a lot of talk about whether they were the source or how could they read this work
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because they would swear to confidentiality. what is your thought about that and how they came about? >> can we say how inseverable some of them are? the pretentiousness and the self importance that comes with the supreme court clerkship, not all of them to be sure, but that certainly at least in my experience is part of it. >> i have a duty to -- the of exquisite judgment and are very fine people. but it's mostly the ones that hang up on me. i was very surprised by what went on and i reconstructed it if for my chapter on the deliberations in the affordable care act case.
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i think it was just indicative of the high stakes in the case and the peculiar unexpected roll that john roberts played, just they are not aware chief justice roberts was the vote in motion during the deliberations, and he moved to a more pro affordable correct position over the course of the liberation. the case was argued in march. it was decided on june 28. in may the conservative columnists george will, parker, "the wall street journal" editorial page started writing pieces that said chief justice roberts is getting wobbly on the affordable care act and we want to -- we wanted to show how tough he is going to become a and he is a national review and edit your gave a speech at
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princeton at a reunion saying my sources at the supreme court say that roberts is moving to a pro affordable to erect position which is quite extraordinary, and he was quite right. my information is that those did come from clerks perhaps to the judges that they had clerked for in the circuit court and then to the sort of media bloodstream. my position of all of this is generally pro disclosure. so what that all of these things happened. i don't see what harm we have done and how this process has to be so mystified and secret and obviously within reason, but to me it was just illustrative of how passionately particularly conservatives felt about this case. but, you know, i don't think there was any particular harm.
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>> in 1987, the small working groups fighting sandra day o'connor, byron white and the bill drafted a law clerk code of conduct with -- which i think was slightly tweaked and it was adopted by the court in 1989. now, you and i can't write the court and ask for a copy because the supreme court refused to release it to the public which i think is problematic and to itself, but i found a copy of it in the personal papers of forbid marshall. the code of conduct says they have a duty of confidentiality etc. to both of the court and to the justices because there was some suggestion that the time that the maybe one or two of the justices that authorized the clerks would go off the reservation and talk to the press. regardless of whether that is a good or a bad thing in the living in a space society and of being transparent, it clearly violates, blatantly violates the
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code of confidentiality code of conduct because even if a justices authorizes you to talk you have your duty to the supreme court as an institution, and over the last 2530, 40 years, we have seen the repeated instances of the selective violations starting with the brethren all the way through the book closed chambers and through i think this spring, and i was not a supreme court law clerk but i know that confidentiality is an important in looking for a judge or justice and it bothers me because i do think that they are violating what is the ongoing duty of confidentiality. on the other hand as a researcher because of no one talks to me i don't have anything to write about, but there is the confidentiality there and they finally did it. >> thank god. >> we shall also point out that they are violating as relevant because the brother in chose the
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five justices spoke to armstrong for that book anonymous at the time that we know who they are now. and so, if the justices are talking to the press, and they may well have been after the affordable care act was passed, how seriously can they take this confidentiality agreement? >> i want to get a view of another area and then we will bring in the audience and that is how you go about researching the court when it is such a secretive organization basically i will never forget when it is at a social event many years ago
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and there was a role in the conversation and rehnquist said to the reporters and other branches of government is that we don't need to people. it was quite an icebreaker. [laughter] but by implication the supreme court doesn't need book authors system of the justices i know are not interested in helping or talking to reporters. so how did you go about your work in this regard? piercing the privacy. >> let me say first of all i want for christmas what i want to ask for is jeffrey toobin's sources because you have a marvelous job, i don't know how, peeling back the curtain. >> can i just say about my source is obviously i call a lot of the clerks not all of them, but some of them and you know
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the best thing i did the single most useful trip i took was to lafayette indiana. what's there? disease and archives. brian lamb went to perdue which is in west lafayette and he said all of his archives there. the justices are on c-span a lot, and you'd be surprised how much is out there in plain sight. a lot of these justices like to talk about themselves which is a common phenomenon in the human interaction, and i sort of went through a lot of these panel discussions and speeches with law schools and there was gold. in between the nine c-span put its archives on the web, so i was denied the pleasure of returning to west lafayette.
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but the same idea what my editor likes to say in reporting in general you'd be amazed how much is in plain sight, and i thought c-span was an example of how much was in plain sight. >> to also foot your answer around for a second but i am concerned is one source which is drawing of in most of my research i've gone to the library of congress where the justices have their personal papers and a couple of years ago when harry blackmun's papers opened up, there was a sort of pushed back by the court because justice didn't throw away anything. if you want to see every single christmas card they said it's there. if you want to see the conference notes, it's their. if you go forward a couple years to the papers that opened this year and i went to the library of congress there is nothing. the papers have been sanitized. there isn't even a correspondence file and my
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concern is because some of us are using the sources because the court is more sensitive for political the supreme court justice papers have been a wonderful source of information that's going to go away. some papers are sealed for decades. i don't think they open up for another ten years and i wonder for someone like konar or souter once the papers open up i may be dead by of the time they open up that's been a great source of information and i worry about the history there's a famous story of truman and he came in and said what are you doing, think of history and he replied i am thinking of history. i'm worried the justices are thinking of history, too and its right to be to our detriment. >> i want to speak about asking justices for interviews.
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i think that if you ask for an interview on a particular topic they feel comfortable talking about for instance justice breyer has a fairly easy justice to get an interview with what it's like to be the junior justice because he served for 11 years in the role of the senior justice by a couple of weeks so he's not the record holder what he was happy to talk to me about that particular aspect of the court and house seniority plays into things. so i think it is easier to approach them on certain topics than others. i also -- for my book i was planning on interviewing them all, they don't know that, but i was coming and c-span that a wonderful series of interviews with brian lamb and suzanne and they asked about the building, the court building, and they just started throwing out some
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questions and got some very fruitful responses and kept going. when i was halfway through my book these transcripts came out and i realized all the questions i would have asked them were being asked by c-span, and i extract all the golden nuggets and put them in the narrative format to make them come alive. but as the justices often tend to when they give interviews the answer questions and sort of the same way. so i didn't really feel like i needed to go back and reinvent the wheel except for my own personal glory of doing that. it was already out there. >> if i can follow up on that, clare mentioned the retirement issues of the justices. i'm sure you noticed when justice scalia was on his recent book tour to was asked by people
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about retirement, and he didn't get the standard answer. he actually told the truth. this is the first time in history when the justice cannot and said in multiple interviews i'm going to retire under a like mind of president. why would i establish an entire judicial record for decades and decades and then leave under the president that would appoint someone to undo it? i would never do that. he said this and he meant it. he had the justices and scalia just comes around and says, so i think when the justices are in public and they are being asked questions they might be willing to say no and give them credit for it sometimes. and so, you know, we can - some information as to the clues of what really goes on. >> if you want to talk about the difficulties, try calling the justice and say i'm going to write a beach book legal thriller about how someone all the justices. [laughter]
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>> so, i of course didn't do that, and but i did rely on the great work that is out there, which is total coincidence. i took a lot of pride in trying to get the supreme court history and procedure right even though it is a legal thriller, and i read hundreds of articles and books and in my note section at the end of the book i pointed out the articles or books that were the most helpful in that regard, and i think about tony's great reporting and every one of the panelists prior books which i rely on as complete. so i think they do a great service to educating the public and writers and a free but he also not the court. >> i share the concern about the future of the records that will be available from the justices and their papers.
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i asked once about what the justices are doing with their e-mail. is there any regime for saving e-mail and i was told no there isn't much of a role. they still -- most of the communications on paper, but there is no rule about the e-mail and the justice peepers are not governed, are not viewed as public documents in the same way the presidential papers are. ..
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>> you know, the brother and was published in 1979. there wasn't really a behind-the-scenes book about the supreme court, [inaudible] between 1979 and 2010. when i wrote my other book. i think there is some generational change that has
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gone on record. i think that the justices were on the court, they really were of a different generation where the press was not a major factor in their thinking. you now have several justices in their 50s who grew up in a different environment. i'm not saying that they are more welcoming to media attention. but they came of age in the world where, you know, they have sought after this. and you know, justice scalia has written a book. only william douglas in the past provokes. this sort of personal, you know, publicity seeking on their part, it is different than historically. frankly, i think it's a very good thing. i think when they go out and
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talk about books, they become little bit more accessible. >> it is funny. because byron white's folder lock ehrlichs, he felt that the relationships with byron right changed. the clerks felt that something changed. now, i don't know whether or not the justice has completely changed, but if you go back and you look at newspaper articles, it does a lot of service to the justices. just livid and talking about how this young man should be taught. anthony schooley himself said that if any of his law clerks do that, they would hunt him down. some would be just as curious of
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what happened today. >> i would like to ask each of you, all five of you, if you would please tell us your favorite humorous story about a justice or the supreme court. >> wow, i i will go first and find the anecdote queen. i would love to tell you my favorite surrey and transport about thurgood marshall and he had pneumonia in 1975. richard nixon was president. and i think that nixon was hoping to get a vacancy on the court and so one day, one of marshall's doctors came to him and said, the president has requested to send over your
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medical record. he had pneumonia. you know, he was very sick. and he said, of course he can send him over, but let me just right on the record with a black sharpie parker. and he wrote not that come exclamation point. [laughter] >> by most accounts, he was a terrible man to work for. one story that i have about douglas is about if he had written a u.s. reporter or something. the young man denied it. douglas is just humbly with rage and saying that books are temples. i would never trust a person who would write in person who would write an in a book written douglas takes the book and flips it under his window.
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and he throws it to heart and it goes out the window and lands in the courtyard outside and cracked the spine. and the center for second, and then the law clerk makes hst and check hasty exit about how he treats books. [laughter] >> david souter and stephen breyer are frequently together. not too long ago, justice david souter was driving from here to new hampshire. and he stopped a little restaurant to get something to eat. a couple came up to him, and the guy said, i know you, you were on the supreme court. he said you are stephen breyer, right? and he didn't want to embarrass him in front of his wife and he said yes, i am. and they chatted for a little while. then the guy asked him a question that david souter wasn't ready for.
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>> the characters in my story or a backdrop of what would happen if you had to replace the majority of the court. my favorite is a nominating harold carswell. he was considered one of the highest caliber nominee for this report. he was panned in the press as being a mediocre lawyer and a mediocre presidents. one of his senate handlers trying to help said something to the effect of, you know, there's lots of mediocre lawyers and judges and people out there. don't they deserve representation, to? and so that was the end of his chances to become a justice.
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>> i think that is one of the things that todd and i were hoping to do with our book. not just to talk about some of the politics and behind-the-scenes procedural matters. but some of the other things that happened as well. i had a chapter on chief justice rehnquist and one of the things i enjoyed was the humor that was clear of the papers of stanford university. he was very much interested in making the court a fun place to work and maybe that is because he clerk to their many years before. and he said i would like to be in charge of the christmas party. here are my ideas. i have an eight-point plan about what we should do. and we should get flickr and he is going on and on about this but at the same time, he is
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organizing betting pools and competitions between his clerks and iran once clerks. a putting contest, a picture we have in the cover our book. so the court isn't just a collection of high-powered, you know, legal and political people. also a bunch of fun people. >> if you can speculate, when, if ever it would happen. i think that tony mowers should go first because he has written considerably on the topic. >> i don't see happening in the near future. i keep thinking that the youngest generation of justices will come on and it keeps
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happening. justice elena kagan, she seemed like the best champion in the courts. and she said that she was going to carry this cause into the court. just a few months ago, she gave a speech where she was asked about it. and she said well, you know, i have been thinking about it and maybe not -- maybe it will be the right thing to do. maybe it will change the dynamics of the justices. so i am not so sure anymore. it is almost like the order of the court descends on new justices. and they suddenly decide that cameras are not a good idea. >> justice souter famously said there would be cameras in the court over his dead body. you know, i agree with tony.
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i know tony has been the most eloquent about talking about the chances of this happening in our lifetime are slim to none. i do think they will be more receptive to increased audio availability. they now release all of the audio at the end of the week when the arguments take place. i read that in 10 years that they will stream the arguments live on the web in terms of audio. i think that video is a very different story. i, too, was shocked and disappointed to see elena kagan afflicted with this stockholm syndrome that goes on there currently. >> the first question i have, there is a lot of talk about
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history. first of all, is this the first time in history people have said this? that it is the most political court in history? and secondly, whether that could change. will it stay that way? >> i don't think that i have said, and i don't believe this is the most political court in history. i think the court is always political. i think it is a political institution. presidents appoint justices to reflect their political ideology, whether it's frankly the roosevelt trying to get the new deal for lyndon johnson trying to get desegregation through judicial review. you know, as for the most conservative reactionary of all time, you know, this is the
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court that brought us cheered scott and really horrible decisions, far worse than anything that this supreme court could come up with. so i don't believe that this is a more political court than it has ever been. but i do think that it is political. >> i think it is the most activist court in history. my colleague at syracuse university has a book on us. what he has shown that the modern court is the most activist in terms of striking down laws than any court ever before. in that sense from the court is getting involved in issues of that the american people have spoken on. issues that they want. and the court has said no. this may very well account for why the courts of public approval rating has declined in
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the last decade or so. their willingness to get involved in the big issues in overtime, maybe an activist is a better word than politicized. >> i will put on my practicing lawyer had here. i think that what does get lost sometimes is that not all the decision of the supreme court are big political issues that you read about in the paper. i think much of the work, probably most of it, involves issues that people really when you consider. statue of limitations and their efforts to resolve the context and the circuit, we do have to step back. there is so much stuff that goes on. you can't really put a liberal or a conservative type of phenomena. >> about one third of the cases are unanimous every year.
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and i think that that is a fair judgment of how much are pretty uncontroversial. probably half or eight to one. it is pretty uncontroversial. >> one interesting thing is other manifestations of even the public realizing the court is a political institution. maybe the court realized that as well. i spent last summer with a professor talking about judicial attendance of the state of the union address. we got this idea because of the citizens united case you president obama making a statement about the scope of the law. over time, the court struggled with their role and their public role, certain political events like the state of union. in the last 10 or 15 years, it has decreased. with justices saying that i don't want to be a part of plant at a political pep rally. and etc. there are other ways we could
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see what the public thinks of the court in political terms for the court is more aware of what does and doesn't want to do. >> what are your thoughts on this? how conservative this court is compared to others? >> no, i'm not going to go there. but i would say that it is interesting what is politicized in the courtroom would affect the american people. i don't know the answer to that. i think that's a very interesting question. in the past, i think the court always has, by and large do not. >> briefly, one of the measure might be the political activities the supreme court espouses. his attorney thomas -- is jenny thomas and her political activism to sort of an outlier case? or do they represent the fact
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that some of the spouses of justices are stepping out of the shadows and asserting their own views? what impact on the cords that had? >> yes, jenny thomas comes to mind. >> can i just say, i think that was a bunch of nonsense. the criticism of justice thomas for sending the case. there was an effort to get him off the case by a bunch of democratic congressmen who knew how he was going to vote. jenny thomas has been a political activist since before she even met clarence thomas. she had every right have that job. they are a two career family like a lot of different people. they didn't have a financial stake in health care case. so i think she had every right to do what she did. clarence thomas had his right to do what he did on a case. and thomas was fortunate that the leader of the effort to get him off the case was congressman
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anthony wiener out of brooklyn who was later distracted by other matters matter has to be several jokes in it. >> yes? >> my question is the number of cases being heard by the court now. and i was just talking the other day about blockbuster cases we have been having lately. the blockbuster turns. do you think there has been an increase in public awareness and attention to the supreme court in these cases? using this court is generally accepting more controversial cases? and also what. you i actually think it ebbs and flows. i am very sensitive this because i'm trying to sell books. i was very fortunate this last term. the term before was like the loser term of all time.
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it was, you know, the big case was -- is california's violent videogame labeling constitutional or not? you know, some terms are big and some aren't. fortunately, this last term was quite dramatic. >> i have a comment on what you have been saying. basically it is true that although justices may be chosen by the president because they think that person is going to do as a justice, not always true, for example earl warren, who certainly a great disappointment to dwight eisenhower. but what's fascinating to me at the moment is just a sotomayor.
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clearly, what is your view of where she is really going to come out on the. >> i'm sorry, but i just think that this idea that presidents are surprised and justices turn out differently is a myth. you know, that was the eisenhower presidency, which was a long time ago. there have not been surprises. you're absolutely right. it suffices to president eisenhower. since then, the number of surprises is very small. look at all nine justices on the current supreme court. >> as far as i can tell, she's going to be a solid liberal like the other for democratic appointees to the court. unless you see something that i don't see. i think she has taken a particular interest in the criminal docket.
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i think the fact that she was a federal district judge in actually dealt with cases in a non-academic sort of rough and tumble -- and has a tremendous amount of the court. >> part of my point is she's less political in my view. many of these cases talk about this. how might we? >> one last question. >> all of you have extensive views.
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discussing and talking to the law clerks and i was wondering if there was one justice that you would like to sit down and have a cup of coffee with or have a beer with, whether it is due to intrigue or whether you think that you would enjoy their company. >> alive or dead? >> whatever. >> the combination may not be very good. [laughter] >> i would go for john marshall, personally. but it would be difficult to arrange. [laughter] >> for me it would be homes or frankfurter. >> i would go with john marshall. >> it is so hard to choose just one. i'm going to go with daniel
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miller. [applause] >> not as bad as james mcreynolds. the worst human being ever to be on the court. [laughter] >> and he didn't think women should have jobs. >> that's right. [laughter] >> all right, on that note, thank you very much. i think we have wedded the appetite of the audience about these books. the books are there and thank you very much. [applause] >> we would like to hear from you. tweet us your feedback at twitter.com/booktv. >> you don't always find many newspaper editors in any era investigating reporting. but it's not just economics. it is the discomfort that
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investigative reporting causes in the newsroom. because it is that more than the economics. if you're going to ruffle the feathers of somebody powerful, that if those people running into complaint to the publisher. we were fortunate all throughout the 70s and almost throughout all our careers work for people who were are very strong and upright in that area. >> the pulitzer prize-winning investigating team of james steele will take your calls and e-mails and tweaked next month on in depth. they began their collaborative work in the 70s. watch live on c-span2 next month's we have about a month left in 2012 and many publications are putting out their year and notable books.
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booktv will feature several of these books. these nonfiction titles were included in the "the washington post" best books of 2000 twelfths. >> katherine boo behind the beautiful forever is. and anthony should be on the hoe of stone. and james hirschberg, history and international affairs professor reports on miracle, he aimed the aim to end the vietnam war in 1966. anne applebaum